Donald Bouchillon v. W. J. Estelle, Jr., Director, Texas Department of Corrections

507 F.2d 622, 1975 U.S. App. LEXIS 16350

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 29, 1975
• Docket: 74-2459
• Status: Published

Opinions

GODBOLD, Circuit Judge:

By this habeas suit appellant attacks a 1946 Texas state conviction used for enhancement. State remedies have been exhausted. Relying on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (CA3, 1972), he claims that his 1946 sentence was void because the court did not accept the prosecution’s plea bargain recommendation of a suspended sentence and instead sentenced him to two years’ confinement. Under Texas law, had the suspended sentence been imposed, the conviction could not have been used for enhancement.

Nothing more than a prosecutorial recommendation was promised, and that bargain was performed. Santobello requires neither that the court accept the prosecutor’s recommendation nor that the defendant be permitted to withdraw his plea after the recommendation is rejected. Culbreath does not hold that there is an unequivocal right to withdraw the plea but rather suggests that as a matter of policy the judge’s discretion should be exercised in favor of withdrawal in most circumstances.¹ In the case before us the state court record reveals that the prosecutor’s recommendation was refused “when some new complaints came to the attention of the Court.”

Our conclusion makes it unnecessary for us to consider whether the new constitutional rule urged by appellant should, if adopted, be retroactively applied.

Affirmed.

1 . The only authority cited in Culbreath is a reference to proposed amendments to the Federal Rules of Criminal Procedure not yet adopted.